Helene Grossman v. Secretary of the Commonwealth- Securities Division (SPR 20200153)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe11>isor ofR ecords February 10, 2020 SPR20/0153 Benjamin Donovan, Esq. Enforcement Section Massachusetts Securities Division One Ashburton Place, Room 1701 Boston, MA 02108-1552 Dear Attorney Donovan: I have received the petition of Helene Grossman appealing the response of the Securities Division (Division) to a request for public records. G. L. c. 66, § 1O A; also 950 C.M.R. 32.08(1). Specifically, Ms. Grossman requested 3 categories of records related to the following: 1) Complaints or any equivalent form for inquiries or requests for assistance to investigate a matter under the jurisdiction of the Securities Division from January 1, 2017 to the present; 2) Investigations opened by the Securities Division from January 1, 2017 to the present; and 3) all information available for investigation #2011-0005. Previous appeal This request was the subject of a previous appeal. See SPR20/0021 Determination of the Supervisor of Records (January 21, 2020). In my January 2P1 determination I closed the appeal with the understanding that the Division will provide a response within IO business days. The Division provided a response on January 24, 2020. Ms. Grossman appealed and SPR20/0153 was opened as a result. Tlte Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 1O A( d); 950 C.M.R. 32.03(4 ). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4 § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma. us/pre • pre@sec.state.ma. us

Benjamin Donovan, Esq. SPR20/0153 Page 2 February 10, 2020 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current appeal In its initial response dated November 25, 2019, the Division provided information about its ability to search for and identify responsive records. The Division also cited Exemption (f) of the Public Records Law, as well as 950 C.M.R. 14.413, to withhold other responsive records. G. L. c. 4, § 7(26)(a), (f). The Division's January 24th response provides additional information regarding these matters. Parts 1 and 2 oft he request With respect to part 1 of Ms. Grossman's request, which seeks complaints or any equivalent form for inquiries or requests for assistance to investigate a matter under the jurisdiction of the Division, you indicate "[t]he Division does not maintain any master list identifying all 'complaints, inquiries, or requests for assistance' in the manner requested. Furthermore, the Division does not maintain any master list identifying the result of Division investigations." You also note "[s]hould Ms. Grossman like to request documents relative to a Administrative Complaint or Consent Order, the Division will turn over any documents that are not nonpublic pursuant to Section 7(26)(f) of Chapter 4 of Massachusetts General Laws and Section 14.413 of Title 950 of the Code of Massachusetts Regulations." The Division also references a particular section of the Massachusetts Statewide Records Retention Schedule and indicates" ... should Ms. Grossman wish to request information relative to a specific inquiry or record contemplated by Schedule 007-10, the Division will conduct a search of its records and turn over all responsive documents that are not nonpublic pursuant to ...." With respect to part 2 of Ms. Grossman's request which seeks investigations opened by the Securities Division, you explain, in part, "[s]hould Ms. Grossman like to request documents relative to a specific investigation or inve1,tigations, the Division will turn over any documents that are not nonpublic pursuant to Section 7(26)(f) of Chapter 4 of Massachusetts General Laws and Section 14.413 of Title 950 of the Code of Massachusetts Regulations." In her appeal petition Ms. Grossman asserts, in part, "[i]t does not matter if it is a master list, and it does not matter if that list is exhaustive. If the Securities Division keeps any complaint or investigation records, then those are responsive documents" ( emphasis in original). Please be aware that the request must reasonably describe the records sought. See G. L. c. 66, § lO(a)(i). In a recent case, the Superior court found that under the Public Records Law "[t]he reasonable description requirement contemplates that a requesting party will identify documents

Benjamin Donovan, Esq. SPR20/0153 Page 3 February 10, 2020 or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production." See Jaideep Chawla v. Dep't of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated "[r]equests for documents that are aiiiculated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently 'related' to the category of materials requested, will not satisfy this statutory standard." (e mphasis in original). Accordingly, I find it is unclear which specific records Ms. Grossman seeks in parts 1 and 2 of her request. Ms. Grossman may wish to modify and/or clarify her request in order to reasonably describe the requested records in a manner consistent with the standard articulated above. Part 3 oft he request With respect to Ms. Grossman's request for all information available for investigation #2011-0005, you indicate "the Division stated that records related to the investigation identified by Docket No. E-2011-0005 are nonpublic investigatory materials pursuant to Section 7(26)(f) of Chapter 4 of Massachusetts General Laws and Section 14.413 of Title 950 of the Code of Massachusetts Regulations." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Comi, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists

Benjamin Donovan, Esq. SPR20/0153 Page 4 February 10, 2020 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Exemption (I) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. The Division asserts that 950 MASS. CODE REos. 14.413(B) defines "investigatory materials" as follows: The term "investigatory materials" as used in 950 CMR 14.413(A) includes, but is not limited to, all documents, records, transcripts, evidentiary materials of any nature, conespondence, related memoranda, or work product concerning any examination, any investigation (whether formal or informal), or any related litigation, which pertains to or may disclose, the possible violation by any person of any provision of any statute, rule, or regulation administered by the Division, by any other federal, state, local or foreign governmental authority, by any professional association, or by any securities industry self-regulatory organization. The term "investigatory materials" also includes all written communications from, or to, any person complaining or otherwise furnishing information respecting such possible violations, as well as all correspondence or memoranda in connection with such complaints or information. The Department explains "[t]he mere fact that an investigation may currently be 'closed' does not nullify the exemption. Furthermore, the Division may withhold confidential

Benjamin Donovan, Esq. SPR20/0153 Page 5 February 10, 2020 investigative techniques indefinitely if their disclosure would prejudice future enforcement actions. In this case, the disclosure of the requested documents would unduly prejudice the Division's ability to pursue appropriate enforcement actions of future violations of the Massachusetts Uniform Securities Act." In her appeal petition Ms. Grossman asserts, in part, "[f]or any complete records or portions of records that have been withheld or redacted, the Division should provide the specific reason for the withholding/redaction - for example, by explaining how providing particular information would prejudice the Division's investigation(s)." Based on her petition, I find the basis of Ms. Grossman's appeal with respect to part 3 of her request is unclear. Specifically, in light of the Divison's responses that cite Exemption (f) and 950 C.M.R. 14.413 as a basis to withhold records, it is unclear what type of action Ms. Grossman seeks from this office. See G. L. c. 66, § lO(b)(iv). Consequently, this office is unable to opine on this matter at this time. See 950 C.M.R. 32.08(1 )(f) (all petitions for appeal shall be in writing and shall specifically describe the nature of the requestor's objections to the response or failure to issue a timely response). Ms. Grossman may wish to clarify the nature of her objections. Conclusion With respect to parts 1 and 2 of Ms. Grossman's request, the parties are encouraged to communicate in order to facilitate producing records efficiently and affordably in a manner described above. With respect to part 3 of the request, Ms. Grossman may wish to clarify the nature of her objections in order to proceed with an appeal. Sincerely, ~~ Supervisor of Records cc: Helene Grossman